The Magazine

Tribunals on Trial

Dec 17, 2001, Vol. 7, No. 14 • By DAVID TELL, FOR THE EDITORS
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OF ALL the myriad criticisms lately leveled against President Bush's November 13 "military tribunals" order, the most wonderful--for pure dishonesty--is the indignation expressed over the directive's alleged denigration of regular Pentagon legal work. What the president has proposed "bear[s] scant resemblance to normal military justice," huffed a New York Times editorialist last week, imagining a "shadow system . . . in which defendants can be tried and condemned to death" on the thinnest pretext. Bush's "diktat," added columnist William Safire, a "subversion of the Uniform Code of Military Justice" hatched by the "Ashcroft-Mueller axis" of Justice Department "zealots," is now being heroically resisted by "cooler heads" in the Pentagon. Already, though, our "extant system of courts martial has been besmirched," Harvard Law School's Laurence Tribe told the Senate Judiciary Committee on December 4. Besmirched!

Of course, none of these gentlemen actually knows shinola about our "extant system of courts martial," else they would not be celebrating its purported superiority over the president's "Soviet-style secret military trials" (Safire, again). Defendants charged with a non-capital offense under the Uniform Code cannot be convicted unless two-thirds of a court martial's panel members approve--the same standard Bush has established, "at a minimum," for prospective al Qaeda trials. Death penalties imposed by regular courts martial require a unanimous vote, however, and Bush has not yet promised that tribunals convened in accordance with his November 13 instructions will adopt this additional threshold, too. So . . .

So the president's critics simply assume, without evidence, that no procedural refinements will be forthcoming from the administration, that Bush does indeed intend to put "hundreds" or even "thousands" of people to death by two-thirds straw poll, and that this departure alone from the white-gloves delicacy of "normal military justice" is a self-evident breach of civilization's basic code.

The spectacle is beyond satire, really. We have a bunch of self-righteous ignoramuses invoking the Bill of Rights in defense of a "traditional" Pentagon jurisprudence that has been the bane of civil libertarians for decades.

Under "normal military justice," the right to handpick members of a court martial, who perform judge and juror roles simultaneously, is awarded to the very same officer who has accused the defendant in the first place. That defendant is permitted an unlimited number of for-cause challenges against nominated panelists, and so long as at least five people remain in the pool, his accuser is not permitted to replace the ones who get bounced. But in most cases, the prosecution doesn't want to replace excluded panelists. In a non-capital trial where the two-thirds rule applies, the prosecution wants a court martial with exactly six panelists--three of whom, fully half, the defendant must win over to avoid conviction (whereas, for example, with a panel of eleven, four votes, or barely a third, would be sufficient for acquittal). In a military death penalty case, where unanimity is required for conviction, the indefinite size of trial-court membership lends an even more forceful gravitational pull to voir dire proceedings: Eager to limit the possibility of defeat, the prosecution has every incentive to nominate panelists biased in its favor. And, desperate not to lose a single potential vote to save his life, the defendant has little or no incentive to object.

Interesting, no? "Normal military justice," in short, is precisely the sort of thing, under any other circumstances, that a minimally informed New York Times editorial page would be having a we-the-people conniption over. That the Times might be wrong to do so--the court martial system's peculiar voir dire rules are defensible and their constitutionality has been consistently upheld--is not the point. The point, instead, is that the Times and its fellow hysterics have nothing of substance on which to ground their complaint that Bush's ad hoc military tribunals will extend fewer due-process courtesies to Taliban war criminals than regular court martial trials provide. We would be willing to bet a large amount of money, to the contrary, that when the Pentagon does finally make public its detailed plans for those tribunals, all talk about the beauties of "normal military justice" will disappear without a trace.